Washington University Law Review
Volume 61 | Issue 1
January 1983
Eighth Amendment Prohibits Imposition of Death
Penalty on Accomplice to a Felony Murder,
Enmund v. Florida, 102 S. Ct. 3368
Linda K. Singer
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Linda K. Singer, Eighth Amendment Prohibits Imposition of Death Penalty on Accomplice to a Felony Murder, Enmund v. Florida, 102 S. Ct.
3368, 61 Wash. U. L. Q. 253 (1983).
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CASE COMMENTS
EIGHTH AMENDMENT PROHIBITS IMPOSITION
OF DEATH PENALTY ON ACCOMPLICE TO A FELONY
MURDER
Enmund v. lorida, 102 S. Ct. 3368 (1982)
In Enmund v. Florida,' the United States Supreme Court emphasized
the eighth amendment's prohibition against disproportionate punishment 2 in holding that the imposition of the death penalty on a defendant convicted of felony murder,3 absent an independent finding of
1. 102 S. Ct. 3368 (1982).
2. The following cases recognize the eighth amendment prohibition of disproportionate
penalties: Godfrey v. Georgia, 446 U.S. 420, 433 (1980); Coker v. Georgia, 433 U.S. 584, 592
(1977); Ingraham v. Wright, 430 U.S. 651, 667 (1977) (dictum); Gregg v. Georgia, 428 U.S. 153,
173 (1976); Furman v. Georgia, 408 U.S. 238, 279-80 (1972) (Brennan, J., concurring); Robinson v.
California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring); Trop v. Dulles, 356 U.S. 86, 100
(1958) (dictum); Weems v. United States, 217 U.S. 349, 367 (1910). See generally L. BERKSON,
THE CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT (1975); W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW § 22, at 163 (1972); Baldus, Pluasky, Woodworth & Kyle, Identifying
Comparatively Excessive Sentences of Death, .4 QuantitativeApproach, 33 STAN. L. REv. 1, 1-8
(1980); Mulligan, Crueland UnusualPunishments: The ProportionalityRule, 47 FORDHAM L. REV.
639, 639-40 (1979); Turkington, UnconstitutionallyExcessive Punishment: An Examination of the
Eighth .4mendment andthe Weems Principle,3 CRIM. L. BULL. 145, 147 (1967); Wheeler, Towarda
Theory of Limited Punishment: An Examinationof the Eighth Amendment, 24 STAN. L. Ray. 838,
841 (1972); Note, The ConstitutionalityofImposing the Death PenaltyforFelony Murder, 15 Hous.
L. REv. 356, 357-63 (1978); 59 WASH. U.L.Q. 546, 547-52 (1981).
3. Under the common-law felony murder rule a person is liable for murder if death occurs
during the commission of a felony. 4 W. BLACKSTONE, COMMENTARIES * 201. At common law,
an attempted felony was either punished as a misdemeanor or was not considered a crime at all.
See Note, supra note 2, at 363-64. Thus, the felony murder rule was primarily instituted to
broaden criminal responsibility for homicides committed during incomplete felonies. Id Over
time, as more crimes were categorized as felonies, many of which were not punished by death, the
continued operation of the rule caused some startling results which generated demands for limitations on its use. MODEL PENAL CODE § 210.2 (Official Draft 1980). American legislatures responded by dividing felony homicides into two grades or lowering the degree of murder for all
felony homicides. Id at 32 n.78. The courts also imposed restrictions on the felony murder rule.
For example, many courts now insist that the felony pose a foreseeable risk to life, e.g., People v.
Washington, 62 Cal.2d 777, 402 P.2d 130, 44 Cal. Rptr. 442 (1965). Other courts require that the
killing be in furtherance of the felony, e.g., Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472
(1965), or that the homicide resulted while the felony was in progress, e.g., Higgins v. State, 149
Miss. 280, 115 So. 213 (1928). As a result of these piecemeal limitations on the scope of the felony
murder rule, the current law of felony murder differs substantially throughout the country.
The felony murder rule remains the subject of criticism. Some commentators assert that inequities have resulted from the reform efforts. Moreover, because malice aforethought is presumed as
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intent to kill,4 constitutes cruel and unusual punishment.
The trial court sentenced petitioner to death under Florida's capital
felony sentencing statute5 following his conviction for robbery 6 and
a matter of law where murder is committed in perpetration of a felony, e.g., Larry v. State, 104
So.2d 352 (Fla. 1958), the felony murder rule is often attacked for being anomalous to the basic
premise of criminal law: punishment for deeds done with a state of mind that makes them reprehensible. MODEL PENAL CODE § 210.2 (Official Draft 1980). See also People v. Aaron, 409 Mich.
672, 299 N.W.2d 304 (1980) (common-law felony murder rule abandoned in Michigan). In recognition of these problems, the American Law Institute has recommended elimination of the rule.
Nevertheless, the felony murder rule persists. See also Note, Felony MurderRule-In Search oA
Viable Doctrine, 23 CATH. LAW 133 (1978). See generally W. LAFAVE & A. SCOTT, supra note 2,
§ 1, at 545 (discussion of felony murder).
4. In order to be held criminally liable under traditional principles of criminal law, a person
must commit an act (actus reus) which causes harm, while harboring an evil state of mind (mens
rea). W. LAFAVE & A. SCOTT, supra note 2, § 24, at 175. The defendant's mens rea is considered
a reflection of his moral guilt and, thus, the degree of his criminal culpability. See, e.g., Mullany
v. Wilbur, 421 U.S. 684, 699 (1975).
At early common law, state of mind was not determinative of criminal responsibility. 2 F.
POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 470 (rev. 2d ed. 1911). In the 12th
century courts recognized the mental element of crime, R. MORELAND, THE LAW OF HOMICIDE 5
(1952), and in the 16th century the concept of malice aforethought became an essential element of
murder. 4 W. BLACKSTONE, supra note 3, at * 178. Originally, malice aforethought meant deliberate intent to kill conceived prior to the act. Perkins, A Re-Examination oMaliceAforethought,
43 YALE LJ. 537, 545 (1934). Later, it was extended to include the accidental killing during the
commission of a wrongful act. Lord Docke's Case, 72 Eng. Rep. 458 (K.B. 1535); E. COKE, THE
THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 56 (6th ed. 1680). This extension has
evolved into the present felony murder rule. See supra note 3. See generally Note, Constitutional
Limitations Upon the Use of Statutory CriminalPresumptions and the Felony Murder Rule, 46
Miss. LJ. 1021, 1021-22 (1975).
5. FLA. STAT. § 921.141 (Supp. 1981).
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court held that when infrequently and
arbitrarily applied, the death penalty could not serve the social purposes that justify it. Id at 249
(Douglas, J., concurring). The practical effect of this watershed decision was to strike down all
state death penalty laws with the infirmaties Furman identified. Within six months of Furman,the
Florida legislature met in a special session and became the first state to reinstitute capital punishment. The new statute attempted to correct the deficiencies of the previous death penalty statute.
See Boyd & Logue, Developments in the Application ofFlorida'sCapitalFelony SentencingLaw, 34
U. MIAMI L. REv. 441 (1980). See also Yetter, Constitutionalityof the FloridaDeath Penalty, 52
FLA. BAR. J. 372 (1978); Note, FloridaDeath Penalty: A Lack 0/Discretion?,28 U. MIAMI L. REv.
723 (1974).
Florida's section 921.141 requires bifurcated trials: guilt adjudication and sentencing. If found
guilty, the defendant may present evidence at the sentencing hearing concerning any matter the
court deems relevant to the nature of the crime and the character of the defendant, including
factors relating to any of the following aggravating or mitigating circumstances:
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first degree murder7 of an elderly couple.' The Florida Supreme Court
affirmed the conviction and sentence. 9 In doing so, the the court noted
that the record supported nothing more than an inference that petitioner was the person who waited in a parked car to help his codefendants escape.'" Nevertheless, under Florida law, his participation made
(5) Aggravating circumstances.- Aggravating circumstances shall be limited to
the following:
(a) The capital felony was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital felony or of a felony
involving the use of threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital felony was committed while the defendant was engaged, or was an
accomplice, in the commission of, or an attempt to commit, or flight after committing or
attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy
or the unlawful throwing, placing, or discharging of a destructive device or bomb.
(e) The capital felony was committed for the purpose of avoiding or preventing a
lawful arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any
govermental function or the enforcement of laws.
FLA. STAT. § 921.141(5) (Supp. 1981).
(6) Mitigating Circumstances.-Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another
person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination
of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
Id. § 921.141(6).
When testimony is concluded, the jury weighs the evidence and offers a sentencing recommendation arrived at through a majority vote. After receiving the recommendation, the trial judge
weighs the aggravating and mitigating circumstances, and decides on the defendant's sentence. If
the trial court imposes the death penalty, the judge must set forth the court's findings in writing
and appellate review is mandatory.
Florida's capital felony sentencing statute was upheld as constitutional in State v. Dixon, 283
So. 2d 1 (Fla. 1973), cert. denied, 416 U.S. 943 (1974).
6. The petitioner was convicted of robbery under FLA. STAT. § 812.13 (Supp. 1981).
7. The petitioner was convicted of first degree murder under FLA. STAT. § 782.02(l)(A)
(Supp. 1981).
8. Armstrong v. State, No. 75-110 Crim. (Sept. 30, 1975).
9. Enmund v. State, 399 So. 2d 1362 (Fla. 1981).
10. Id at 1363-67. Petitioner, Earl Enmund, decided to rob the victims Thomas and Eunice
Kersey following an incident in which Mr. Kersey had revealed the contents of his wallet and
bragged that he usually carried $15,000-16,000 on his person.
Codefendants Sampson and Jeanette Armstrong approached the Kersey home on the pretext of
needing water for an overheated car. Enmund remained in the car. When Mr. Kersey came out
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him a constructive aider and abettor"1 and therefore a principal in first
degree murder12 subject to the death penalty.' 3 The United States
Supreme Court reversed and held: Imposition of the death penalty on
a defendant who did not kill, attempt to kill, or intend to kill constitutes cruel and unusual punishment under the eighth and fourteenth
amendments. 14
The Magna Carta 15 and the cruel and unusual punishment clause of
the English Bill of Rights 16 prohibited the imposition of disproportionate punishments in England.' 7 The language of the eighth amendment 8 is virtually identical to that of the cruel and unusual
of the house Sampson Armstrong threatened him at gun point. Kersey yelled for help. His wife
emerged from the house firing a shotgun. In the shoot-out which followed, the Kersey's were
killed. The Armstrongs took the victim's money, rejoined Enmund and fled.
11. FLA. STAT. § 777.011 (Supp. 1981).
12. See, eg., Adams v. State, 341 So. 2d 765, 768-69 (Fla. 1976) (a felon is generally responsible for the lethal acts of his co-felon), cert. denied, 434 U.S. 878 (1977).
13. The trial court found that four statutory aggravating circumstances applied in this case:
1) the petitioner had a previous felony conviction; 2) the murders were committed during the
course of a robbery; 3) the murders were committed for pecuniary gain; and 4) the murders were
especially heinous, atrocious, or cruel because the Kersey's were shot in a prone position to eliminate them as witnesses. 399 So. 2d at 1371-72. The Florida Supreme Court rejected two of the
four statutory aggravating circumstances found by the trial court. It held that the findings that the
murders were committed in the course of a robbery and for pecuniary gain referred to the same
aspect of the crime and therefore could only be considered as one aggravating circumstance. In
addition, the state Supreme Court did not approve the finding that the murders were especially
heinous, atrocious and cruel. It did, however, affirm the trial court finding that none of the statutory mitigating circumstances applied and thus, the aggravating circumstances outweighed the
mitigating circumstances. Most importantly, the Florida courts decided that the petitioner's participation in the robbery was not "minor." Id at 1371-72. See supra note 5.
14. Enmund v. Florida, 102 S. Ct. 3368 (1982). The eighth amendment is applicable to the
states through incorporation of the due process clause of the fourteenth amendment. See, e.g.,
Robinson v. California, 370 U.S. 660, 667 (1962). In his concurring opinion in Furman v. Georgia, 408 U.S. 238, 241 (1972), Justice Douglas also argued that the privileges and immunities
clause of the fourteenth amendment was specifically intended to apply the cruel and unusual
punishments clause to the states.
15. J. HOLT, MAGNA CARTA 323 (1965). "A free man shall not be amerced [punished] for a
trivial offense, except in accordance with the degree of the offense; and for a serious offense he
shall be amerced according to its gravity." Id
16. Bill of Rights, 1688, 1 W. & M. sess. 2, ch. 2, reprintedin R. PERRY & J. COOPER,
SOURCES OF OUR LIBERTY 247 (1959).
17. "mhe cruel and unusual punishments clause of the Bill of Rights of 1689 was, first, an
objection to the imposition of punishments which were unauthorized by statute.., and second, a
reiteration of the English policy against disproportionate penalties." Granucci, Nor Cruel and
UnusualPunishmentInflicted" The OriginalMeaning 57 CAL. L. REv. 839, 860 (1969).
18. The eighth amendment states: "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S. CONsT. amend. VIII.
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punishment clause of the English Bill of Rights.1 9
In 1791, the framers of the Constitution adopted the eighth amendment after cursory debate.' ° As a result, legislative history indicating
the intended meaning of the cruel and unusual punishmentg clause is
scarce. Courts initially limited the eighth amendment's application to
barbaric and torturous forms of punishment. 21 Subsequently, courts
19. Seesupra notes 16-18.
20. 1 ANNALS OF CONGRESS 754 (J. Gales ed. 1789).
In 1791, the states uniformly followed the common-law practice of imposing death as the
mandatory sentence for specified offenses. See H. BEDAU, THE DEATH PENALTY IN AMERICA 307
(3d ed. 1982). The range of specified offenses typically included murder, treason, piracy, arson,
rape, robbery, burglary, and sodomy. Id at 7. Since that time, there has been considerable legal
debate over the justifications and procedural requisites of capital punishment. See, e.g., Godfrey
v. Georgia, 446 U.S. 420 (1980); Coker v. Georgia, 433 U.S. 584 (1977); Roberts v. Louisiana, 428
U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 428 U.S. 262
(1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976); Furman v.
Georgia, 408 U.S. 238 (1972); McGautha v. California, 402 U.S. 183 (1971). This is especially true
of the last decade, primarily because of the Supreme Court decision in Furman v. Georgia, 408
U.S. 238 (1972), which required that courts use guided discretion when imposing a death sentence.
See also infra notes 39-43 and accompanying text. See generally H. BEDAu, THE COURTS, THE
CONSTITUTION AND CAPITAL PUNISHMENT (1977) (reflections on capital punishment controversy
from 1967-1977).
Currently, thirty-five states authorize the death penalty for a variety of offenses.
Thirty-two states statutorily impose the death penalty for felony murder. See ALA. CODE
13A-2-23, -5-40(a)(2), -6-2(a)(1) (1975 & Cum. Supp. 1981); ARIZONA REV. STAT. ANN. § 13703(G)(3) (Cum. Supp. 1981); ARK. STAT. ANN. § 41-1501 (Supp. 1981); CAL. PENAL CODE ANN.
§ 189, 190.2(a)(17) (West Supp. 1982); COLO. REV. STAT. § 16-11-103(5)(d) (1973); CONN. GEN.
STAT. § 53a-54b (1981); DEL. CODE ANN., tit. 11, §§ 636(a)(2), 636(2) (6) (1979); FLA. STAT.
§§ 782.04(l)(a), 775.082, 921.141(5)(d) (1976 & Cum. Supp. 1982); GA. CODE ANN. §§ 261101(b)(c). 27-2534.1(b)(2) (Cum. Supp. 1982); IDAHO CODE § 19-2515(f) (1979); ILL. REV. STAT.
ch. 38, § 9-(a)(3), (b)(6) (1979); IND. CODE ANN. § 35-50-2-9(c)(4) (West 1979); Ky. REV. STAT.
§ 507.020(b) (Supp. 1981); LA. REV. STAT. ANN. § 14:30(1) (West Cum. Supp. 1982); MD. CRIM.
LAW CODE ANN. art. 27, §§ 410, 411(b), 413(d)(10), 413(e)(1) (1982); Miss. CODE ANN. § 97-319(2)(e) (Cum. Supp. 1982); MONT. CODE ANN. § 46-18-304(6) (1981); NEB. REV. STAT. § 292523(2)(e) (1979); NEV. REV. STAT. §§ 200.030(l)(b), .030(4), .033(4) (1979); N.M. STAT. ANN.
§§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Cum. Supp. 1982); N.C. GEN. STAT. § 15(a)-2000(f)(4)
(Supp. 1981); OHIO REV. CODE ANN. §§ 2903.01(B)(C)(D), 2929.02(A), 2929.04(A)(7) (Page 1982);
OKLA. STAT. ANN. tit. 21 § 701.12 (West Cum. Supp. 1982); S.C. CODE ANN. §§ 16-3-10, 20(C)(a)(l) (Law Co-op Cum. Supp. 1982); S.D. CODIFIED LAWS ANN. § 23A-27A-1 (1979
& Supp. 1982); TENN. CODE ANN. §§ 39-2-202, 2-203(1)(7) (1982); TEx. STAT. ANN., § 19.02
(a), .03(a)(2) (Vernon 1974); UTAH CODE ANN. § 76-5-202(1) (1978); VT. STAT. ANN. tit.
13, §§ 2303(b), (c) (Cum. Supp. 1982); VA. CODE § 18.2-31(d) (1982); WASH. REV. CODE
§§ 9A.32.030(l)(c)(1), .040(1) (1977 & Cum. Supp. 1982); Wyo. STAT. §§ 6-4-101, -102(h)(iv)
(1977). See infra notes 64 & 75 and accompanying text.
21. See, e.g., In re Kemmler, 136 U.S. 436, 447 (1890). Burning at the stake, crucifixion, and
breaking at the wheel are examples of what was considered barbaric punishment. Id at 446. It
has been suggested that the cruel and unusual punishment clause in the English Bill of Rights of
1689 was not intended to outlaw barbarous methods of punishment, but instead, was intended to
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have broadened the scope of the amendment to include the concept of
disproportionality22 and to restrict the type of behavior that may be
considered criminal. 23
A dissenting opinion in OWed v. Vermont24 offered the first Supreme
Court expression that the eighth amendment prohibited disproportionate sentences. The Court in Weems v. United States25 later adopted
that position as the majority view. In Weems, a United States Coast
Guard officer was convicted of falsifying a public document 26 and sentenced to fifteen years of "hard and painful labor in chains."27 In overturning the sentence as cruel and unusual, the Court explained that it is
a "precept of justice that punishment for a crime. . . be graduated and
proportioned to the offense." 28
The Weems Court engaged in a two-tiered analysis. First, the Court
compared the defendant's punishment to sanctions imposed in other
jurisdictions for the same crime.29 It then compared the punishment
under attack to sentences imposed in the same jurisdiction for more
serious crimes. 30 The Court concluded that the nature of the punishment in question offended the eighth amendment in both "degree and
'3 1
kind."
The Weems Court also emphasized the eighth amendment's evolving
outlaw punishments "which were unauthorized by statute and outside the jurisdiction of the sentencing court." Granucci, supra note 17, at 860.
22. See supra note 2.
23. See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977) (the cruel and unusual punishments
clause does not apply to disciplinary corporal punishment in public schools); Robinson v. California, 370 U.S. 660 (1962) (imposition of ninety-day sentence for drug addiction is cruel and unusual punishment). See generally H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968).
24. 144 U.S. 323, 337 (1892) (Field, J., dissenting). Justice Field stated in his dissent: "The
inhibition is directed, not only against punishments [which inflict torture], but against all punishments which by their excessive length or severity are greatly disproportioned to the offences
charged." Id at 339-40.
25. 217 U.S. 349 (1910).
26. Id at 364.
27. Id Weems was sentenced to fifteen years of hard labor, constant wearing of shackles, loss
of civil liberties, and surveillance for life. Id
28. Id at 367.
29. Id at 380-81. In Badders v. United States, 240 U.S. 391 (1916), Justice Holmes ignored
Weems and relied on Howard v. Flemming, 191 U.S. 126, 135-36 (1903), which rejected the com-
parative approach. Recently, however, the Court has compared punishments and statutes when
evaluating sentences under the eighth amendment. See Coker v. Georgia, 433 U.S. 584, 593-96
(1977); Gregg v. Georgia, 428 U.S. 153, 179-80 (1976).
30. 217 U.S. at 380-81.
31. Id at 377.
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nature. The Court observed that many commentators viewed the
amendment as "progressive," and thus sensitive to changes in public
standards of decency and justice.3 2
More recent Supreme Court decisions reiterate the Weems interpre-
tation of the eighth amendment as an evolving standard.33 In Trop v.
Dulles,3 4 the Court announced that the definition of the eighth amend-
ment is not static.35 Rather, it incorporates "evolving standards of decency that mark the progress of a maturing society." 36 When applied,
this construction of the eighth amendment has functioned to overturn
38
various sentences, 37 including the assignment of the death penalty.
32. Id at 378.
33. See Godfrey v. Georgia, 446 U.S. 420,433 (1980); Coker v. Georgia, 433 U.S. 584, 593-94
(1977); Gregg v. Georgia, 428 U.S. 153, 173 (1976); Furman v. Georgia, 408 U.S. 238, 242 (1972)
(Douglas, J., concurring); id at 463-64 (Brennan, J., concurring); id at 409 (Blackmun, J., dissenting); Robinson v. California, 370 U.S. 660-66 (1962); Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
34. 356 U.S. 86 (1958) (army serviceman denationalized for wartime desertion after escaping
from stockade where he was confined for disciplinary breach).
35. Id at 100-01.
36. Id
37. See, e.g., Robinson v. California, 370 U.S. 660 (1962) (imposition of a 90-day sentence for
drug addiction is cruel and unusual punishment); Trop v. Dulles, 356 U.S. 86 (1958) (denationalization of wartime deserter is cruel and unusual punishment). But see Rummel v. Estelle, 445 U.S.
263 (1980) (mandatory life sentence under recidivist statute is not cruel and unusual punishment).
38. See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (death penalty for rape reversed); Roberts v. Louisiana, 428 U.S. 325 (1976) (death penalty for murder reversed); Woodson v. North
Carolina, 428 U.S. 280 (1976) (same); Furman v. Georgia, 408 U.S. 238 (1972) (death penalty for
murder and rape reversed).
In other cases, however, the Supreme Court has upheld the death penalty. See Jurek v. Texas,
428 U.S. 262 (1976) (death sentence for choking a ten year old girl upheld); Proffitt v. Florida, 428
U.S. 242 (1976) (death sentence for stabbing burglary victim upheld); Gregg v. Georgia, 428 U.S.
153 (1976) (death sentence for robbery and murder upheld). The Court, however, has only affirmed death sentences where the killing was clearly the deliberate and premeditated act of the
defendant.
In Gregg v. Georgia, 428 U.S. 153 (1976), the jury was instructed on both intentional and felony
murder theories. The facts of that case, however, leave little doubt as to the intentional nature of
the offense. The Court confirmed this characterization of Gregg's crime in stating: "But we are
concerned here only with the imposition of capital punishment for the crime of murder, and when
a life has been taken deliberately by the offender, we cannot say that the punishment is invariably
disproportionate to the crime." Id at 187. The Court was presented with an accomplice, felony
murder scenario in Woodson v. North Carolina, 428 U.S. 280 (1976). Woodson, however, was
decided on the broader issue of the constitutionality of mandatory death penalty statutes. As a
result, the Court never reached the question of whether the imposition of the death penalty on the
petitioner would have been "so disproportionate to the nature of his involvement ....
as independently to violate the Eighth [Amendment]... " Id at 305 n.4. The Court similarly avoided
making such a determination in Lockett v. Ohio, 438 U.S. 586 (1978). See infra notes 55-59 and
accompanying text.
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The Supreme Court first directly addressed the constitutionality of
capital punishment under the cruel and unusual punishments clause of
the eighth amendment in Furman v. Georgia.3 9 In Furman, one peti-
tioner was convicted of murder and two other petitioners were convicted of rape.' A jury sentenced each defendant to death.4 The
Supreme Court, however, invalidated the capital sentences. 42 The
Court determined that allowing a jury to impose the death penalty
through a process that lacked objective standards of guidance consti-
tutes cruel and unusual punishment in violation of the eighth
amendment.4 3
Since Furman, mandatory death penalty statutes have likewise been
declared unconstitutional. 44 Capital punishment per se, however, has
39. 408 U.S. 238 (1972). Challenges to the death penalty shifted to the eighth amendment
after an attempt based on due process doctrine failed in McGautha v. California, 402 U.S. 183
(1971). For a discussion of the constitutionality of capital punishment under traditional due process and equal protection analysis, see Radin, The JurisprudenceofDeath: Evolving Standards/or
the Crueland UnusualPunishments Clause, 126 U. PA. L. REv. 989, 1001-17 (1978).
Prior to Furman, the Court heard arguments on the death penalty as cruel and unusual punishment in Boykin v. Alabama, 395 U.S. 238, 249 n.3 (1969) (Harlan, J., dissenting), but the case was
decided on other grounds. The Court has often given implicit constitutional approval to capital
punishment by holding that particular methods of execution do not violate the eighth amendment.
See Louisiana ex rel Francis v. Resweber, 329 U.S. 459, 463 (1947) (second attempt at electrocution after first attempt failed not cruel and unusual punishment); In re Kemmler, 136 U.S. 436
(1890) (electrocution approved as method of execution); Wilkerson v. Utah, 99 U.S. 130 (1878)
(death by shooting approved as method of execution). In addition, there are a number of instances where the Court, in dictum, or a particular Justice, in a separate opinion, has expressed the
opinion that capital punishment does not offend the eighth amendment. McGautha v. California,
402 U.S. 183, 226 (1971) (Black, J., concurring); Trop v. Dulles, 356 U.S. 86, 99-100 (1958) (Warren, C.J.); In re Kemmler, 136 U.S. 436, 447 (1890) (Fuller, C.J.) (dictum).
40. 408 U.S. 238 (1972).
41. Id
42. Id
43. Id at 240-57 (Douglas, J., concurring) (discretionary sentencing procedures permit discriminatory sentences); id at 291-300 (Brennan, J., concurring) (statutes permit capricious sentencing); id at 309-10 (Stewart, J., concurring) (statutes permit random and capricious imposition
of death penalty); id at 311-14 (White, J., concurring) (infrequent imposition of death penalty
makes it unusual and pointless punishment); id at 364-66 (Marshall, J., concurring) (death penalty discriminates against minority group defendants). Justices Brennan and Marshall also concluded that the death penalty was unconstitutional per se. Id at 305-06 (Brennan, J., concurring);
id at 370-71 (Marshall, J., concurring). For a full analysis of Furman,see England, CapitalPunishment in the Light of ConstitutionalEvolution: An Analysis of DistinctionsBetween Furman and
Gregg, 52 NOTRE DAME LAW. 596, 596-600 (1977); The Supreme Court, 1971 Term, 86 HARV. L.
REv. 1, 76-85 (1972). See supra note 5.
44. Roberts v. Louisiana, 428 U.S. 325 (1976) (mandatory death penalty statute for murder
unconstitutional); Woodson v. North Carolina, 428 U.S. 280 (1976) (same).
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never been disqualified as contrary to the eighth amendment.4 5
In Coker v. Georgia,46 the Supreme Court overturned the imposition
of a capital sentence for the crime of rape. 47 The Court ruled that a
punishment is excessive and therefore unconstitutional if it "makes no
measurable contribution to acceptable goals of punishment, 8 or is
grossly out of proportion to the severity of the crime."' 49 Moreover, the
Court stressed that a constitutional judgment of proportionality should
be based upon objective evidence of contemporary public attitudes."
Accordingly, the Court reviewed legislative judgments51 and jury sentencing tendencies5 2 regarding the punishment of rape. The Coker
Court, however, viewed an evaluation of public opinion as only one
factor to be considered in making a proportionality decision. 3 The
Court observed that a court's subjective judgment should also affect a
decision regarding the acceptability of a punishment under the eighth
amendment.5 4
45. See Gregg v. Georgia, 428 U.S. 153, 168-87 (1976) (the punishment of death does not,
under all circumstances, violate the eighth amendment if not imposed arbitrarily or capriciously
and if the sentencing authority is given adequate information and guidance).
46. 433 U.S. 584 (1977) (petitioner escaped from correctional facility and committed rape,
robbery, assault, and kidnap).
47. id at 592.
48. There has been much controversy over which goals of punishment are acceptable and
whether the present penal system adequately serves those goals. Retribution and deterrence are
the two theories of punishment usually advanced in support of the death penalty. Under the
theory of deterrence, the sufferings of the criminal for the crime he has committed are intended to
deter others from committing future crimes, for fear they will suffer the same unfortunate fate. W.
LAFAVE & A. ScoTr, supra note 2, § 5, at 23. Under the theory of retribution, punishment is
imposed on a criminal by society in order to obtain revenge or because he inflicted harm and
therefore deserves his "just deserts." Id at 24. The appropriateness of these theories with respect
to capital punishment has been the subject of considerable scrutiny. See generall, Andenaes, The
General Preventive Effects of Punishment, 114 U. PA. L. REv. 949 (1966); Lempert, Desert and
Deterrence." An Assessment of the Moral Bases ofthe Casefor Capital Punishment, 79 MICH. L.
REV. 1177 (1981); Comment, ConstitutionalLaw: The Death Penalty: A Critiqueofthe Philosophical Bases Held to Satisfy the Eighth Amendment RequirementforitsJust~fcation, 34 OKLa. L. REV.
567 (1981).
49. 433 U.S. at 592.
50. Id at 593.
51. Id at 594-97. Legislative actions are presumed to measure public opinion because political representatives are elected and subject to reelection. See Gregg v. Georgia, 428 U.S. 153, 17576 (1975).
52. 433 U.S. at 594-97. Jury recommendations are presumed to reflect public attitudes because they are composed of a cross section of the community. See Kalven & Zeisel, TheAmerican
Jury and the Death Penalty, 33 U. CHI. L. REv. 769 (1966).
53. 433 U.S. at 598.
54. Id
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In Lockett v. Ohio," the Supreme Court implicitly affirmed the notion that subjective judgment plays a role when evaluating the propriety of a death sentence. 6 In Lockett, the Court maintained that
individualized consideration is a constitutional imperative in capital
57
cases because of the unique and final character of the death penalty.
Consequently, the Lockett Court struck down the Ohio death penalty
statute because it impinged upon the defendant's right to sentence con-
sideration of mitigating circumstances concerning his character, record
and offense."8 Thus, in evaluating the proportionality of a death sentence, courts must consider not only the objective standards of decency
set forth in Coker,59 but also any mitigating circumstances concerning
the defendant.
In Enmund v. Florida,6° a plurality of the Supreme Court6t applied
the eighth amendment to invalidate a death sentence imposed on an
accomplice to a felony murder. Justice White articulated the proportionality principle 62 and evaluated the facts in accordance with the ob55. 438 U.S. 586 (1978) (defendant sentenced to die for aiding and abetting a felony murder).
56. Id.
57. Id at 605. See also Eddings v. Oklahoma, 102 S. Ct. 869 (1982) (adopting the Lockett
rule in finding defendant's age to be a mitigating circumstance); Green v. Georgia, 442 U.S. 95
(1979) (adopting the Lockett rule by allowing testimony of third party at sentencing hearing, to
effect that codefendant actually committed killings).
Justices White and Rehnquist expressed concern that the discretion which the Lockett decision
affords the sentencer in considering mitigating circumstances is too great. They viewed it as resulting in a return to the unguided discretion impermissible under Furman. Lockett v. Ohio, 438
U.S. at 622-23 (White, J., concurring in part and dissenting in part); Id at 629, 631 (Rehnquist, J.,
concurring in part and dissenting in part). The Texas Court of Criminal Appeals raised the same
concern in Adams v. State, 577 S.W.2d 717 (Tex. Crim. App. 1979), rev'd on other grounds, 448
U.S. 38 (1980).
58. 438 U.S. at 605. See also Hertz & Weisberg, In Mitigationofthe PenaltyofDeath: Lockbiht
to Consideration ofMitigating Circumstances, 69 CAL.
ett v. Ohio and the Capital Defendants
L. REv. 317 (1981).
In State v. Cooper, 336 So. 2d 1133 (Fla. 1976), cert. denied, 431 U.S. 925 (1977), the Florida
Supreme Court expressly declared that the former Florida death penalty statute restricted consideration of mitigating factors to those set forth in the statute. Two years later, the court reversed
the Cooper decision in Songer v. State, 365 So. 2d 696, 700 (Fla. 1978) (on rehearing), cert. denied,
441 U.S. 956 (1979), holding that the Florida capital sentencing statute created a nonexclusive set
of mitigating circumstances and was thus constitutional despite Lockett.
59. 433 U.S. at 592. See supra notes 46-52 and accompanying text.
60. 102 S. Ct. 3368 (1982).
61. Justice White delivered the opinion of the Court, in which Justices Marshall, Blackmun
and Stevens joined.
62. Id.
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263
63
jective test established in Coker.
Justice White considered the nationwide status of the death penalty
and concluded that only nine of the thirty-six jurisdictions authorizing
the death penalty would execute a defendant solely because he participated in a robbery during which a murder occurred.' In addition, Justice White examined the nation's death row population as of October 1,
63. 102 S.Ct. at 3372-76. See Coker v. Georgia, 433 U.S. 584 (1977). See also supra notes
46-52 and accompanying text.
64. 102 S.Ct. at 3372-75. More specifically, the Court found that only nine states authorize
imposition of the death penalty for mere participation in a robbery in which a cofelon takes a life.
See CAL. PENAL CODE ANN. §§ 189, 190.2(a)(17) (West Supp. 1981); FLA. STAT. ANN.
§§ 782.04(1)(a), 775.082(1), 921.141(5)(d) (West 1976 & Cum. Supp. 1982); GA. CODE ANN. §§ 281101(b), -1101(c), 27-2534.1(b)(2) (Cum. Supp. 1982); Miss. CODE ANN. §§ 97-3-19(2)(e), 99-19101(5)(d) (Cum. Supp. 1982); NEV. REV. STAT. §§ 200.030(1)(b), .030(4), .033(4) (1979); S.C. CODE
ANN. §§ 16-3-10, -20(C)(a)(1) (Law Co-op 1976 & Cum. Supp. 1981); TENN. CODE ANN. §§ 39-2202, -203(i)(7) (1982); WASH. RE. CODE §§ 9A.32.030(1)(c)(1), .040(1) (1977 & Cum. Supp. 1982);
Wyo. STAT. §§ 6-4-101, -102(h)(iv) (1977). Nine other states allow execution for unintended felony murder only if aggravating circumstances outweigh mitigating circumstances. Of these, six
make minor accomplice participation a statutory mitigating circumstance. See ARIZ. REy. STAT.
ANN. § 13-703G(3) (Cum. Supp. 1981) ("relatively minor" participation); CONN. GEN. STAT.
§ 53a-46a(O(4) (1981) (same); IND. CODE ANN. § 35-50-2-9(c)(4) (West 1979) (same); MONT.
CODE ANN. § 46-18-304(6) (1981) (same); NEB. REV. STAT. § 29-2523(2)(e) (1979) (same); N.C.
GEN. STAT. § 15(a)-2000(f)(4) (Supp. 1981) (same). The other three exclude felony murder from
their lists of aggravating circumstances. See IDAHO CODE § 19-2515(f) (1979); OKLA.STAT. ANN.
tit. 21, § 701.12 (west Cum. Supp. 1982); S.D. CODIFIED LAWS § 23A-27A-1 (1979 & Supp. 1982).
The remaining jurisdictions that authorize capital punishment either flatly prohibit such a sentence for felony murder, see Mo. REV. STAT. §§ 565.001, .003, .008(2) (1979) (death penalty may
be imposed only for capital murder, felony murder is first-degree murder); N.H. REV. STAT. ANN.
§§ 630:1, :1(111), :l-a(I)(b)(2) (1974) (capital murder includes only killing a law enforcement officer, killing during a kidnapping, and murder for hire); PA. STAT. ANN., tit. 18, §§ 1102, 2502(a),
2502 (b) (Purden 1980) (death penalty may be imposed only for first-degree murder;, felony murder is second-degree murder), or require some culpable mental state with respect to the homicide,
see ALA. CODE §§ 13A-2-23, -5-40(a)(2), -6-2(a)(1) (1975 & Supp. 1981) (to be found guilty of
capital murder, accomplice must have had "intent to assist or promote commission of the murder"
and murder must be intentional); ARK. STAT. ANN. § 41-5101(1)(a) (Supp. 1981) (defendant must
demonstrate "extreme indifference to ... life"); DEL. CODE ANN., tit. 11, § 636(a)(2), 636(a) (6)
(1979) (if defendant "recklessly" or "with criminal negligence" causes death during the commission of a felony); ILL. REV. STAT., ch. 38 §§ 9-(a)(3), -l(b)(6) (1979) (capital crime only if defendant killed intentionally or with knowledge that his actions "create[d] a strong probability of death
or great bodily harm"); Ky.REV. STAT. § 507.020(b) (Supp. 1981) (defendant must manifest "extreme indifference to human life" and "wantonly engage in conduct which creates a grave risk of
death ... and thereby causes... death"); LA. REV. STAT. ANN. § 14:30(1) (West Cum. Supp.
1982) ("specific intent to kill"); N.M. STAT. ANN. §§ 30-2-1(a)(2), 31-18-14(A), 31-20A-5 (Supp.
1981) (felony murder is a capital crime but death penalty may not be imposed absent intent to kill
unless victim was a peace officer); OHIO REV. CODE ANN. §§ 2903.01(B)-.01(D), 2929.02(a),
2929.04(A)(7) (Page 1982) (accomplice not guilty of capital murder unless he intended to kill);
Tax. STAT. ANN. §§ 19.02(a), .03(a)(2) (Vernon 1974) ("intentionally commits the murder in the
course of [a felony]"); UTAH CODE ANN. § 76-5-202(l) (1978) ("intentionally or knowingly causes
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1981 .6 He observed that, at that time, 796 inmates had been sentenced
to death, but only three, including the petitioner, had been sentenced
without proof of malice aforethought.6 6 Thus, the Court concluded
that legislative judgments and jury sentences indicated society's rejection of the death penalty for crimes such as the petitioner's. 7
The plurality also viewed the defendant's lack of culpability as a significant factor that made the punishment disproportionate and therefore unconstitutional.68 Since the petitioner lacked criminal intent to
murder, the death penalty failed to serve its two principal social purposes: retribution and deterrence of capital crime by potential offenders.6 9 Justice White asserted that "[i]t is fundamental" that harm
caused intentionally must be punished more severely than unintentional infliction of the same harm.7 ° Yet the petitioner and the actual
triggerman each received the death sentence.7 1
Justice Brennan, in a concurring opinion, restated his position that
imposition of the death penalty is always cruel and unusual
punishment.7 2
Justice O'Connor wrote on behalf of the dissent. 73 Although she employed the proportionality test used by the plurality, she did not reach
the same conclusion.74 According to Justice O'Connor's survey of the
state statutes, a defendant who neither killed nor intended to kill is
the death of another"); VA. CODE § 18.2-3 1(d) (Supp. 1981) ("willful, deliberate and premeditated
killing of any person in the commission of robbery while armed with a deadly weapon").
65. 102 S. Ct. at 3375 n.18 (citing NAACP LEOAL DEFENSE EDUCATIONAL FUND, INC.,
DEATH Row, U.S.A. (Oct. 20, 1981)).
66. Id at 3375-76.
67. Id
68. Id at 3377.
69. Id at 3378.
70. Id at 3377 (citing H. HART, PUNISHMENT AND RESPONSIBILITY 162 (1982)).
71. Id at 3369.
72. Id at 3379. This concurrence is a reiteration of Justice Brennan's dissenting opinion in
Gregg v. Georgia, 428 U.S. 153, 227 (1976) (upholding the imposition of the death penalty for
murder).
73. Justice O'Connor was joined by Chief Justice Burger, and Justices Powell and Rehnquist.
74. 102 S.Ct. at 3392. The dissent also contended that the death penalty for felony murder
makes a significant contribution to the goals of retribution and deterrence. Id at 3392 n. 42. The
dissenting justices further expressed concern about the appropriateness of making intent a matter
of constitutional law. Id at 3391. In addition, Justice O'Connor recommended vacating the decision insofar as it affirmed the death sentence and remanding for a new sentencing hearing because
of insufficient treatment of individual circumstances. Id at 3392. Thus, the ultimate result of the
dissent and the plurality is the same: Florida must resentence the petitioner. The dissent, however, would leave open the possibility of imposing the death sentence. Id. at 3392 n. 43.
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subject to the death sentence for participating in a robbery that leads to
murder in two-thirds of the states that permit the death penalty for
murder. 75 This statutory interpretation suggests legislative acceptance
rather than repudiation of capital punishment for felony murder.7 6
The dissent also cautioned against uncritical acceptance of the statis-
tics cited by the plurality. Those statistics purportedly demonstrated
jury disfavor of imposing capital sentences without evidence of intent
to kill.7" The dissent remained unpersuaded by the figures because they
did not indicate the number of homicides that were charged as felony
murders, or the number of cases in which the state sought the death
penalty for an accomplice guilty of felony murder. Further, the statistics reflected the number of offenders sentenced to death who did not
pull the trigger, but did not indicate which of those had an intent to
kill.7 8 Since the two concepts are not completely analogous, the dissent
expressed qualms regarding the relevance of the statistics.79
Justice O'Connor acknowledged that proportionality requires a
nexus between the punishment imposed and the defendant's blameworthiness. 8 ° She questioned, however, the plurality's application of an
eighth amendment proportionality test that excluded standards of
blameworthiness other than specific intent.8 ' She found one standard
of blameworthiness-the intent to commit armed robbery with knowl75. See ARIz. REV. STAT. ANN. § 13-1105(A)(2), -1105 (C) (Cum. Supp. 1982); ARK. STAT.
ANN. §§ 41-1501(1)(a), -1501 (3) (1977); CAL. PENAL CODE §§ 189, 190 (West Supp. 1982); COLO.
REV. STAT. §§ 18-3-102(1)(b), 1-105(l)(a) (1978 & Cum. Supp. 1982); CONN. GEN. STAT. §§ 53a54b, -54c, -35a(1) (1981); DEL. CODE ANN. tit. 11, §§ 636(a)(6), 636(b), 4209(a) (1974 & Cum.
Supp. 1982); FLA. STAT. ANN. §§ 782.04(1)(a), 775.082(1) (West 1976 & Cum. Supp. 1982); GA.
CODE ANN. § 26-1101(c), (d) (Cum. Supp. 1982); IDAHO CODE §§ 18-4003(d), 4004 (West 1979);
IND. CODE ANN. §§ 35-42-1-1(2), -50-2-3(b) (West 1979); Ky. REV. STAT. § 407.020(1)(b), (2)
(Supp. 1980); Miss. CODE ANN. §§ 97-3-19(2)(e), -3-21 (Cum. Supp. 1982); MONT. CODE ANN.
§§ 45-5-102(1)(b), -102 (2) (1981); NEB. REV. STAT. §§ 28-303(2), -105(1) (1979); NEV. REV. STAT.
§§ 200.030(I)(b), .030(4)(a) (1981); N.M. STAT. ANN. §§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5
(1978 & Supp. 1981); N.C. GEN. STAT. § 14-17 (1981); OKLA. STAT. ANN., tit. 21, §§ 701.7(B),
.9(A) (West Cum. Supp. 1982); S.C. CODE ANN. §§ 16-3-10, -20(1) (Law Co-op 1976 & Cum.
Supp. 1982); S.D. CODIFIED LAWS ANN. §§ 22-3-3, -6-1(1), -16-4, -16-12 (1979 & Supp. 1981);
TENN. CODE ANN. § 39-2402(a), -2402 (b) (Supp. 1981); VT. STAT. ANN. tit. 13, §§ 2301, 2303(b),
(c) (1974 & Cum. Supp. 1981); WASH. REV. CODE §§ 9A.32.030(1)(c)(1), .040(1) (1977 & Cum.
Supp. 1982); Wy€o. STAT. §§ 6-4-101(a), -101 (b) (1977).
76. 102 S. Ct. at 3390.
77. Id at 3388. The statistics were those put forth by the petitioner.
78. Id
79. Id
80. Id at 3391.
81. Id
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edge of substantial risk of death or injury-especially compelling.
Concluding that imposition of the death penalty under such circumstances is not cruel and unusual punishment, Justice O'Connor stressed
that while mens rea is an important factor in determining blameworthiness, it does not require a finding of specific intent to kill.82
The Supreme Court correctly employed proportionality analysis in
deciding whether assignment of the death penalty in Enmund
amounted to cruel and unusual punishment prohibited by the eighth
amendment. In its analysis, the Court properly considered objective
standards required by Furman83 and outlined in Coker,84 and deter-
mined that imposition of the death penalty under the circumstances
did
not comport with present standards of decency.
5
It is unclear, how-
ever, whether the Court used these objective indicia to guide its deci-
sion or simply to corroborate a position arrived at primarily through a
86
subjective analysis.
Individual consideration is essential when evaluating the appropri-
82. Id
83. 408 U.S. 328 (1972). See supra notes 40-43 and accompanying text.
84. 433 U.S. 584 (1977). See supra notes 46-52 and accompanying text.
85. Compare supra note 64 with supra note 75 and accompanying text. According to the
dissent, 24 states authorize the death penalty for felony murder without first requiring a finding of
specific intent to kill. See supra note 75. In construing capital sentencing statutes, however, the
dissent seems to look exclusively at the provisions defining the crime of capital murder, ignoring
corollary criteria included in the statutes. Enmund v. Florida, 102 S. Ct. at 3374 n.15. Moreover,
most state statutes provide for a system of balancing specified aggravating and mitigating circumstances. Minor participation is frequently among the mitigating circumstances, and aggravating
circumstances often require an intent to kill. Id Thus, as the plurality points out, only nine states
authorize the death penalty solely on the basis of participation in felony murder. This is a clear
reflection of legislative rejection of strict application of the felony murder rule when capital punishment is involved. See supra note 64.
American juries have likewise repudiated imposition of the death penalty for aiding a felony
murder. The statistics put forth by the petitioner clearly demonstrate this contention. 102 S. Ct. at
3374. No individual in the defendant's position has been executed in over twenty years and only
three of the 796 prisoners on death row are similarly situated. Id The dissent unsuccessfully
attempted to undermine the validity of these statistics. Id at 3379. Although lack of intent to kill
was the main thrust of petitioner's defense, it did not take him out of the statistical category of
nontriggermen. Moreover, as the plurality suggests, a finding that few prosecutors sought the
death penalty for persons convicted of felony murder supports their contention that prosecutors
view such a punishment as disproportionate to the crime involved. Id at 3374. In addition, the
dissent fails to offer any statistics which contradict the plurality's findings as to jury sentiments.
Perhaps this is because none are available. On this basis, it appears that the plurality's application
of the objective standards in this context is the more accurate assessment of public opinion.
86. See supra notes 53-58 and accompanying text.
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ateness of a capital sentence. 87 Lockett"s expressly states that in capital
cases "the fundamental respect for humanity underlying the Eighth
Amendment" requires careful consideration of the character of the offender and the circumstances surrounding the crime. 9
Conviction of an innocent defendant is opprobrious. This is especially true when a capital sentence accompanies the conviction, given
the irrevocable nature of the penalty. Accordingly, special scrutiny in
determining culpability is appropriate. Criminal intent, presumed
through the felony murder rule, is itself of questionable status. 90 When
further imputed through the law of accomplice liability,91 that presumed intent fails to serve as a sufficiently reliable indicator of the culpability necessary to support a death sentence. Thus, the Enmund
Court correctly sought independent evidence of the petitioner's state of
mind.
The factual findings of the Florida courts precluded a finding of intent beyond the intent to rob.92 Imposition of the death penalty on a
defendant who merely harbored such an intent contravenes the plurality's determination to reserve capital sentences for the most extreme
crimes. 93 Such drastic punishment is also blatantly contrary to the underlying premise of criminal justice in America: punishment of moral
culpability. 94 Moreover, if such a defendant were sentenced to death,
no more severe punishment will be available for those who are more
not graded, criminals may be encouraged
culpable. If punishments are
95
to behave more violently.
The constitutional mandate of individualized consideration enabled
the Enmund court to overturn the imposition of the death penalty. The
goals outlined in Furman,96 however, were to assure a degree of ration87. Lockett v. Ohio, 438 U.S. 586 (1978).
88. Id
89. I d at 605.
90. See supra note 3.
91. See supra notes 11-12.
92. See Enmund v. Florida, 102 S. Ct. 3368, 3371. See supra note 10 and accompanying text.
93. See, e.g., Jurek v. Texas, 428 U.S. 263 (1976) (petitioner's death sentence for choking a
ten year old girl upheld); Proffitt v. Florida, 428 U.S. 242 (1976) (petitioner's death sentence for
stabbing burglary victim upheld); Gregg v. Georgia, 428 U.S. 153 (1976) (petitioner's death sentence for robbery and murder upheld).
94. See W. LAFAvE & A. ScoTT, jupra note 2, § 5, at 21.
95. See Andenaes, supra note 48, at 968.
96. 408 U.S. at 238.
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ality and uniformity in assessment of the death penalty.9 7 Extensive
individual consideration negates, in part, the attempts to standardize
the process of capital sentencing which the courts and legislatures have
been striving for since Furman. Consequently, although this holding is
proper, given the current status of eighth amendment law, it does not
steer the states in the direction of consistent administration of the death
penalty.
The decision in Enmund to allow consideration of the individual's
state of mind despite the felony murder rule and accessorial liability
affirms the Supreme Court's commitment to prohibiting disproportionate sentences. 98 As long as the values of uniformity and individualized
treatment remain in tension, however, the goals of Furman will remain
elusive. If those goals cannot be met, capital sentences and thus capital
punishment statutes will continually be held unconstitutional.
L.K.S.
97. See supra notes 5 & 40-43 and accompanying text.
98. See supra note 2. The felony murder rule has been rendered inapplicable in a capital
sentencing context. This decision may trigger a complete abandonment of the rule. See supra
note 3.
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